One for the birds: Supreme Court backs EPA ban on a crop pesticide that's deadly to avians

Published 5:30 am, Friday, June 17, 2011

In a victory for environmentalists in general and birders in particular, the U.S. Supreme Court has denied a petition by pesticide manufacturers to challenge the Environmental Protection Agency's ban of a product blamed for sickening farm workers and killing millions of birds of more than 100 species.

The decision also blunts a weapon pesticide manufacturers recently began using to attack the EPA's regulatory power: demanding lengthy administrative hearings to prevent the agency from canceling food tolerance permits necessary for using chemicals on crops destined for human consumption that also enter wildlife food chains.

The high court's ruling in National Corn Growers et al. v. EPA upholds a federal appellate court decision that the agency could effectively ban domestic use of carbofuran, which goes by the trade name Furadan and is frequently used on crops such as potatoes, corn and sunflowers. Officials at the American Bird Conservancy claim it has proven deadly when ingested by birds such as the bald eagle, the eastern bluebird and the American kestrel. "The EPA decision confirmed what we've been saying for years: carbofuran is a deadly poison that has absolutely no place in our food or the environment," says Jason Rylander, senior staff attorney for Defenders of Wildlife. "The court's action means that, in this case, the health and safety of the American people and our nation's wildlife have trumped the profits of powerful corporations."

Despite the legal victory, EPA efforts to clamp down on unsafe use of pesticides are under challenge on other fronts. Several companies have refused to follow new safety measures mandated by the EPA to require tamper- and weather-resistant bait stations and limits on chemical composition of poison baits. The measures are primarily designed to protect children, who agency officials say are at particular risk for exposure to rat and mouse poisons.

According to the American Bird Conservancy, Reckitt Benckiser, the maker of d-CON rat and mouse bait, is fighting federal restrictions on their product, which is blamed for the deaths of raptors and owls that feed on rodents that have ingested it. A federal district court ruled in the company's favor, forcing EPA to conduct a hearing rather than exercising its enforcement powers to require removal of current stocks from store shelves.

Currently federal law makes it too easy to put pesticide products on the market before they are adequately tested for potential hazards to people and the environment.

As George Fenwick, the president of the American Bird Conservancy observes, "It has now been more than 35 years since DDT was banned, and we have been lulled into believing that our environment is adequately protected by an agency whose hands are tied by outdated, industry-centric regulations."

He argues the U.S. should follow Europe's example of banning potentially harmful pesticides from the outset and pressing industry to develop safer products.

The Supreme Court decision is a welcome affirmation of the ability of the EPA to use sound science to protect both humans and wildlife from unsafe pesticides.

Congress should consider revamping regulatory legislation to make it tougher for bad products to get on the market in the first place.